A Descriptive Analysis of the Fourth Amendment and the Third-Party Doctrine in the Digital Age

Abstract

There are few areas of constitutional law that raise scholars’ ire and trouble jurists like the Fourth Amendment’s third-party doctrine. Making sense of the Court’s distinctions between content and metadata and between personal communications and business records was already difficult with physical documents and analog technologies. But the proliferation of digital technologies has rendered obsolete the factual predicates underpinning those distinctions, and courts have struggled mightily with adapting third-party rules forged over thirty years ago to new technologies. At the same time, the Supreme Court has become more explicit in fashioning distinct Fourth Amendment rules for digital technologies. In a trio of twenty-first-century decisions, the Court has made clear — often by overwhelming votes — that the old rules no longer suffice. These two strains of Fourth Amendment law are on a collision course — a collision scheduled for the Court’s October 2017 Term. In June 2017, the Court granted certiorari in Carpenter v. United States, and the question presented is whether the government needs a probable cause warrant to obtain voluminous records about a cell phone’s location — data termed cell site location information (CSLI) — from a wireless provider. In this article, we first review the Court’s twenty-first-century digital Fourth Amendment jurisprudence to tease out the Court’s differential treatment of digital technologies. We then turn to the existing third-party doctrine and attempt to make sense of the doctrine’s distinctions between content and metadata and between personal communications and business records. We examine how our understanding of the existing doctrine applies to digital information like the CSLI at issue in Carpenter. We conclude by reviewing some types of sensitive digital information that potentially lack Fourth Amendment protection under current doctrine.